techlawadvisor / blog

* Grokster

* Coca-Cola Co. v. Purdy: The final factor considers whether the degree of purchaser care can eliminate any likelihood of confusion which would otherwise exist between the products. Several courts have noted that the quick and effortless nature of "surfing" the Internet makes it unlikely that consumers can avoid confusion through the exercise of due care: "In the internet context, in particular, entering a website takes little effort - usually one click from a linked site or a search engine's list; thus, Web surfers are more likely to be confused as to the ownership of a web site than traditional patrons of a brick-and-mortar store would be of a store's ownership."

* BMG Music et al. v. Gonzalez: Northern District of Illinois granted summary judgment in a file sharing suit against an individual file sharer accused of downloading 30 songs. The court rejected fair use and innocent infringer defences.

Gonzalez asserts that the "fair use" defense applies because she: (1) was just "sampling" the songs to determine if she wanted to purchase them; (2) already owned [*3] many of the songs she downloaded; and (3) did not cause any financial harm by downloading 30 songs. These contentions are without merit. First, the Ninth Circuit in A&M Records, Inc., 239 F.3d at 1014-19, rejected the argument that "sampling" by direct infringers is a "fair use." Second, the contention that Gonzalez already owned some of the recordings she downloaded is not relevant because the Recording Companies only seek redress for songs that Gonzalez admits she did not own.

Under section 402(d), however, the "innocent" infringement defense is not applicable "if a notice of copyright in the form and position specified by this section appears on the published [recordings] to which [the infringer] had access." (Emphasis added.) While it is undisputed that the copyrights of 30 songs at issue were properly noticed on the covers of CDs, Gonzalez contends that she has raised a question of fact as to whether she had access to the notice. Although it is true that Gonzalez did not have actual possession of these CDs, section 402(d) does not require proof that the infringer had "actual possession." 2 Nimmer on Copyright, §7.02[C][3], at 7-17 n.25 (2004). Instead, the plaintiff need only show that the CDs with notice "were in circulation [and] available" to the infringer. Id.

* Bosley Med. Inst. v. Kremer: NonCommercial Domain Name Trademark Use OK; Ninth Circuit joins 5th & 6th in okaying non-commercial gripe sites. The Ninth Circuit has held that the use of a business owner's trademark as the domain name of a noncommercial website — the subject of which is consumer commentary about the products and services represented by the mark — does not constitute infringement under the Lanham Act. Bosley Med. Inst. v. Kremer, No. 04-55962 (9th Cir. April 04, 2005) To read the full text of this opinion, go here.

* 1-800 Contacts, Inc. v. Whenu.com, Inc., No. 04-0026, 04-0446 (2d Cir. June 27, 2005) (defendant's "pop up" advertisements, which appear on computer screens contemporaneously with the appearance of plaintiff's internet website, do not infringe upon plaintiff's trademark.) [pdf of the decision] 2nd Cir. says pop up ads don't confuse.

* Fallwell's that ends well for free speech. Check out James Griffith's coverage of Falwell Critic Permitted to Keep "fallwell.com" Gripe Site Domain Name.